Borough of Glassboro v. Gloucester County Board of Chosen Freeholders

Decided: July 10, 1985.

BOROUGH OF GLASSBORO, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND THE BOARD OF HEALTH OF THE BOROUGH OF GLASSBORO, PLAINTIFFS-RESPONDENTS, AND BOROUGH OF CLAYTON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND TOWNSHIP OF MONROE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFFS-INTERVENORS-RESPONDENTS,v.GLOUCESTER COUNTY BOARD OF CHOSEN FREEHOLDERS AND THE COUNTY OF CAMDEN, DEFENDANTS, AND NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ROBERT E. HUGHEY, COMMISSIONER OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, AND KINSLEY LANDFILL, INC., DEFENDANTS-RESPONDENTS, AND THE CITY OF PHILADELPHIA, DEFENDANT-APPELLANT, AND TOWNSHIP OF DEPTFORD, DEFENDANT-INTERVENOR-RESPONDENT

On this appeal, the City of Philadelphia (Philadelphia) asks us to review a preliminary injunction closing the Kinsley Landfill in Deptford Township, Gloucester County. Seven months ago, we denied Philadelphia's request for a stay of the injunction. 98 N.J. 186 (1984). Thereafter, a single United States Supreme Court Justice also denied Philadelphia's request for a stay.

In the present appeal, as in its former application, Philadelphia contends that the injunction, which permits certain New Jersey municipalities to use the landfill as an emergency health measure, imposes an impermissible burden on interstate commerce.

Specifically, Philadelphia contends that the closure order violates the Commerce Clause of the federal constitution, U.S. Const. art. I, § 8, cl. 3. Impressed with the public health emergency that confronted the trial court, the Appellate Division affirmed the injunction. 199 N.J. Super. 91 (1985). We affirm the judgment of the Appellate Division.

I

Kinsley Landfill, Inc. (Kinsley) is a privately-owned landfill that is subject to regulation by the New Jersey Department of Environmental Protection (DEP) as to environmental concerns and by the Board of Public Utility Commissioners (BPU) as to economic matters. For approximately twenty-five years, Kinsley has operated as a major solid waste disposal site in southern New Jersey. On September 26, 1980, DEP issued a permit authorizing the dumping of solid waste at the landfill to a height of 164 feet. By the spring of 1984, garbage had accumulated nearly to the approved limit. Virtually all the solid waste generated within New Jersey that is deposited at the landfill emanates from Gloucester, Camden, and Salem counties (hereinafter described sometimes as "the three counties").

On October 11, 1984, Kinsley notified its customers that it would soon reach the 164-foot limit and that it would close on October 28, 1984. Shortly thereafter, the Borough of Glassboro (Glassboro), one of the municipalities disposing of solid waste at Kinsley, instituted this action to enjoin both the closure of the landfill and the use of the landfill for solid waste originating in Philadelphia. The defendants included Philadelphia, Deptford Township, and DEP. Various other parties were joined or have intervened in the proceedings.

The trial court conducted hearings over several days on Glassboro's request for a temporary restraining order. On October 26, 1984, two days before the announced closure of the landfill, the court rendered its decision and issued the order. The court found that Kinsley was rapidly approaching the end

of its useful life and that it should be closed. Although it recognized that continued use beyond the current design threatened the health and safety of the citizens of Deptford, the court found that immediate closure would cause irreparable harm to the citizens of Glassboro and certain other municipalities. The court concluded that the most equitable response was to restrain the closure and direct Gloucester County to establish "a reasonable site for alternate solid waste disposal." The court reserved decision on the application for restraints against Philadelphia.

Pursuant to a suggestion made by Kinsley's engineer, the court ordered Kinsley to submit to DEP engineering plans for an additional sixteen-foot lift, one that would expand the height of the landfill to 180 feet. In accordance with the court order, DEP reviewed the plans and submitted a report for the court's consideration in connection with the application for a preliminary injunction.

The report cited, among other things, that no acceptable alternate landfill existed in New Jersey for the disposal of solid waste dumped at Kinsley. Consequently, the three counties should expeditiously site and implement landfills within their respective borders. Although DEP procedures for opening a landfill ordinarily take two years, DEP would process the applications on an emergent basis, and the counties could open alternate landfills by November 1985. In the interim, Kinsley could accommodate a sixteen-foot vertical expansion.

At the hearing on the application for the order under review, the court accepted the DEP report in its entirety and, consistent with that report, made certain findings. We accept those findings and the inferences that the trial court drew from them as supported by substantial credible evidence. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). Most importantly, the trial court found that at then current levels of dumping at Kinsley, the additional capacity created by the sixteen-foot lift would be reached in three and one-half months.

Most of the solid waste formerly dumped at the landfill emanated from Pennsylvania, with Philadelphia alone providing 53.9% of the 4,738,783 cubic yards of waste dumped in the period from July 1, 1983 to May 31, 1984. According to waste flow registration statements filed by Philadelphia with DEP, this volume represents a dramatic increase over Philadelphia's prior use of the landfill. In 1981-82, for example, Philadelphia disposed of 784,770 cubic yards of waste at Kinsley, and, in 1982-83, this figure grew to 1,136,785 cubic yards. Accordingly, the trial court found that the disposal of waste by Philadelphia at the landfill had "continued to escalate at an alarming rate unlike those districts subject to interdistrict agreements."

Furthermore, since 1980, DEP had required that Philadelphia, like the adjoining New Jersey counties, sign an interdistrict waste flow agreement with Gloucester as a condition of continued use of the Kinsley Landfill. Notwithstanding DEP's urging, Philadelphia had not executed an interdistrict agreement, the basic instrument under the Solid Waste Management Act, N.J.S.A. 13:1E-1 to -38, for planning for the disposal of solid waste generated outside a district such as Gloucester County. Rejecting one of Philadelphia's contentions, the court found that Gloucester County had negotiated with Philadelphia in good faith.

Also consistent with the DEP report, the trial court found that Philadelphia, unlike the municipalities in the tri-county area, could accommodate the closure of the Kinsley Landfill. Even when Kinsley was operating under a DEP permit, Philadelphia sent half of its garbage elsewhere. Philadelphia not only enjoys access to alternative sites, but also to equipment for routing its solid waste elsewhere. In contrast, the tri-county municipalities do not own the trucks, transfer stations, or resources necessary for dumping at more distant sites. As the Appellate Division recited, fifty-nine municipalities in the tri-county area had no alternative to Kinsley. 199 N.J. Super. at 100.

In view of these findings, the trial court decided that the most equitable result was to exclude from Kinsley solid waste originating from Philadelphia and from other municipalities, both within and without New Jersey. The result of that decision was to extend the life of the landfill for one year, the time needed by the three counties to establish alternative sites.

Consequently, on November 13, 1984, the court issued a preliminary injunction providing, in effect, that:

(1) Municipalities in Gloucester, Camden, and Salem counties could continue to use Kinsley to dispose of solid waste for an additional sixteen-foot lift. The three counties must proceed immediately, within their respective borders, to establish landfills, which are to be operational by November 1985. (As the Appellate Division noted, 199 N.J. Super at 97, two Gloucester municipalities must exhaust the capacity at their municipally-owned landfills before they can resort to Kinsley. See N.J.A.C. 7:26-6.5h, 2, 3, 4.)

(2) Kinsley was to cease accepting solid waste generated within Philadelphia, other Pennsylvania communities, and any other district outside of Gloucester County that is not subject to an interdistrict agreement.

(3) All communities using Kinsley should be required "to maximize" their recycling efforts, including the adoption of mandatory ...

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